2 q.b queen'. 45s bench division9 - university of nairobi€¦ · 2 q.b. queen's bench...

2 Q.B. QUEEN'S BENCH DIVISION 459

A MILLS v. COOPER , . 1967

March 8, 9

Crime — Encamping on highway — " Gipsy " — Meaning — Status — PARKER'C.J. Applicability of doctrine of issue estoppel. DIPLOCK L. J.

Estoppel—Per rem judicatam—Criminal proceedings—Issue estoppel AS H^ORTHJ —Whether applicable in criminal cases.

B Highway—Encamping on—" Gipsy "—Meaning—Whether unalterable status—Whether doctrine of issue estoppel applicable—Highways Act, 1959 (7 & 8 Eliz. 2, c. 25) s. 127.

Justices—Jurisdiction—Discretion—Refusal to hear information on ground oppressive and abuse of process—Information alleging defendant gipsy in March 1966, after dismissal of information alleging defendant gipsy in December, 1965—Whether jurisdiction

C to refuse to hear later information—Whether later information oppressive and abuse of process of court.

Nemo debet bis vexari—Double jeopardy—Successive charges—Dismissal of information alleging defendant gipsy in December, 1965 — Similar information 10 weeks later alleging defendant gipsy in March, 1966—" Issue estoppel"—Whether applicable in criminal cases—Whether later information oppressive or abuse

j ) of process of court.

An information preferred against the defendant that he, on December 22, 1965, being a gipsy did without lawful excuse or authority encamp on a highway contrary to section 127 of the Highways Act, 1959,1 was dismissed in February, 1966, on a submission of no case to answer on the grounds that the justices were not satisfied that he was a gipsy. Some ten weeks later a similar

E information was preferred against him alleging that he was a gipsy on March 13, 1966, and he contended that, since the issue whether he was a gipsy had been decided in his favour in February, there was an issue estoppel debarring the justices from reopening that question and that the later proceedings were oppressive and an abuse of the process of the court. The justices being in doubt whether the doctrine of issue estoppel was applic-

F able in criminal law refused to apply the doctrine but dismissed the information in their discretion on the ground that the proceedings were oppressive and an abuse of the process of the court. On appeal: —

Held, allowing the appeal, (1) that, in the context of section 127 of the Highways Act, 1959, "g ipsy" could not bear the dictionary meaning of a member of the Romany race but was to

Q be given the colloquial meaning of a person leading a nomadic life with no, or no fixed, employment and with no fixed abode {per Lord Parker C.J.) (post, p. 467A-B), or a person without fixed

[Reported by M R S . ZITA DAVIES, Barrister-at-Law.]

1 Highways Act, 1959, s. 127: on a highway, he shall be guilty of " If, without lawful authority or ex- an offence . . . " cuse , . . . ( c ) . . . a gipsy . . . encamps,

460 QUEEN'S BENCH DIVISION [1967]

1967 abode who led a nomadic life, dwelling in tents or other shelters, A Mills o r iQ caravans or other vehicles {per Diplock L.J.) (post, p. 468c);

v- so that being a gipsy was not an unalterable status, and a person o o p e r might have been a gipsy at one time and not a gipsy at another

time. Accordingly, since the issue determined in February was that the defendant was not a gipsy on December 22, 1965, and the issue for determination some 10 weeks later was whether he was a gipsy on March 13, 1966, the justices were right in so far as g they did not apply the doctrine of issue estoppel. But that, although every court had a discretion to decline to hear proceedings on the ground that they were oppressive and an abuse of the process of the court, the justices were not entitled to say that proceedings brought against the defendant 10 weeks later on the issue whether he was a gipsy were therefore oppressive and an abuse of the process of the court.

Per Lord Parker C.J. I am not convinced that the doctrine of *•* issue estoppel as applied in civil cases has any application in criminal cases (post, p. 466c).

Per Diplock L.J. The doctrine of issue estoppel in relation to civil proceedings may be stated as,

" A party to civil proceedings is not entitled to make, as against the other party, an assertion, whether of fact or of the legal consequences of facts, the correctness of which is D an essential element in his cause of action or defence, if the same assertion was an essential element in his previous cause of action or defence in previous civil proceedings between the same parties or their predecessors in title and was found by a court of competent jurisdiction in such previous civil proceedings to be incorrect, unless further material which is relevant to the correctness or incorrectness of the assertion and could not by reasonable diligence have been E adduced by that party in the previous proceedings has since become available to him "

(post, pp. 468F—469A). Issue estoppel is a particular application of the general rule of public policy that there should be finality in litigation; that general rule applies also to criminal proceedings, but in the form of the rule against double jeopardy. The use of the expression " issue estoppel" in criminal and civil proceedings p may lead to confusion (post, p. 469C-E).

CASE STATED by Sevenoaks (Kent) Justices.

On April 27, 1966, an information was preferred by the prosecutor, William Leonard Mills, a police officer, the appellant, against the defendant, Abraham Cooper, the respondent, that he on Q

March 13, 1966, at No Man's Land, Dane Bottom, Dunton Green, being a gipsy did without lawful authority or excuse encamp on a highway contrary to section 127 of the Highways Act, 1959.

(2) The information came before the justices on May 27, 1966; they reserved their decision which they gave on June 10, 1966.

On May 27, 1966, the following facts were proved or admitted.


A On January 5, 1966, an information was preferred by Leslie Alfred 1967 Feaver an Inspector of Police against the defendant that he on Mills December 22, 1965, at No Man's Land, Pilgrims Way West at the cooper junction of Dane Bottom, Dunton Green being a gipsy did without lawful authority or excuse encamp on a highway contrary to section 127 of the Highways Act, 1959; the venue, although slightly

B differently described, was the same as that in the information of April 27, 1966, the defendant not having moved in the meantime. On February 25, 1966, the magistrates' court sitting at Sevenoaks in the county of Kent heard that information. It was then contended by the defendant, inter alia, that the offence with which he was charged had four ingredients, of which the first was " being

C a gipsy". That there was no statutory definition of " gipsy"; that the definition contained in the Shorter Oxford English Dictionary was cited; that the language of the section was not to be taken to be tautologous; that there had to be a technical meaning; that the rules of construction and interpretation of statutes bound the court; and that, in any event, whether the definition was the

D dictionary definition or the popular definition (as contended by the prosecutor) the evidence before the court was insufficient on that issue to support a conviction and that the information should be dismissed. The court was then of the opinion (i) that "being a gipsy" was an essential part of the offence, and (ii) that the evidence thereof was insufficient to support a conviction; and that

E the information was accordingly dismissed at the close of the case for the prosecution after submissions and without any evidence being given by or on behalf of the defendant.

On May 27, 1966, it was contended by the defendant, before he was asked to plead, that in the course of the proceedings on February 25, 1966, the question whether he was a gipsy had been

p argued before the court as a separate issue and that the court had determined that issue in his favour; and that accordingly there was an issue estoppel which would debar the justices from reopening the question, and hearing this information; that further or in the alternative, having regard to the proceedings on February 25, 1966, the proceedings before the justices were oppressive of the defend

er ant, and an abuse of the process of the court, and should accordingly be stayed by the justices in the exercise of their jurisdiction and discretion so to do.

It was contended by the prosecutor that the doctrine of issue estoppel had never been introduced into the criminal law, and did not arise in the case; that, further, the magistrates' court sitting at Sevenoaks on February 25, 1966, did not finally and


7 conclusively determine that the defendant was not a gipsy and A Mills that accordingly the proceedings before the justices were not

Cooper oppressive and it would not be an abuse of the process of the court if they were to hear the second information. It was conceded by the prosecutor that it would be an abuse of the process of the court if (contrary to his contention) he were seeking to reopen an issue which had already been finally determined and R that if he were seeking so to do the justices would have jurisdiction to stay the proceedings.

The justices were of the opinion that: (a) proof that the defendant was a gipsy was necessary to support a conviction of the offence charged; (b) the question whether the defendant was a gipsy had already been decided in his favour by the magistrates' c court sitting at Sevenoaks on February 25, 1966; (c) that court was competent to decide that question; (d) although the matters set out at (b) and (c), possibly gave rise to an issue estoppel (as contended by the defendant), it was doubtful (as contended by the prosecutor), that such a doctrine had been introduced into the criminal law; (e) nevertheless they had jurisdiction and discretion £> having regard to the matters set out at (a), (b) and (c) to decline to hear the information on the ground that the proceedings before them were oppressive and an abuse of the process of the court. The justices exercised that jurisdiction and that discretion and dismissed the information.

The prosecutor appealed. E

Michael Parker for the prosecutor. The fact that the justices were not satisfied, at the first hearing, that the respondent was a gipsy in December was no bar to the prosecution tendering evidence later of a separate offence in March, even though the justices had already said that he was not a gipsy and that that was p a necessary ingredient of the offence. The word gipsy was not to be construed as limited to persons of Romany descent.

[Reference was made to Wemyss v. Hopkins.2] Where matters before justices are not strictly autrefois acquit or autrefois convict, they can deal with matters before them.

[The court did not require him to argue further.] Q Basil Wigoder Q.C. and Stephen Sedley for the defendant.

The definition of " gipsy" in the Shorter Oxford Dictionary, 3rd ed. (1944) p. 794 is " a member of a wandering race (by themselves called Romany) of Hindu origin . . ." The prosecution did not seek to say that the defendant had become a gipsy since

2 (1875) L.R. 10 Q.B. 378, 381.


\ December, but they wished to give fresh evidence that he was 1967

then a gipsy, and a person may not re-litigate on the basis that Mills he has better evidence a second time. Cooper

The issue on the first occasion has been isolated and it was determined, as between the Crown and the defendant, that he was not a gipsy in December. An acquittal means an acquittal and

B must be taken as meaning that a defendant is innocent. [Reference was made to Rex v. Wilkes3 and Sambasivam v. Public Prosecutor, Federation of MalayaS] At the first hearing it was decided by a competent court that the defendant was not a gipsy in December. The question arises: can the prosecution make a similar application that by the following March he had become

C a gipsy? Alternatively, if the word " gipsy " means " a member of a wandering race (by themselves called Romany) of Hindu origin," it is hard to see how a man who was not a gipsy in December could have become one by the following March. But that was not the prosecution case. At the second hearing the prosecution said that the justices might have been right at the first

D hearing; but they sought to re-open litigation between the Crown and the defendant and to say that they now had evidence which they could, by reasonable diligence, have had at the first hearing. But they are estopped from doing this.

Two authorities on estoppel by record in a civil cause are referred to: Hoy stead v. Taxation Commissioner5 and New Bruns-

E wick Railway Co. v. British and French Trust Corporation Ltd} Hoystead v. Taxation Commissioner7 and Phosphate Sewage Co. Ltd. v. Molleson" show that parties cannot seek to evade estoppel by reason of their own negligence. It is conceded that if the prosecution had sought to say that there were new circumstances to show that the defendant had become a gipsy since December they would not have been estopped.

Three essential conditions for estoppel in civil cases are first, that the judgment must be by a court of competent jurisdiction; secondly, the record must show that the judgment is final; and thirdly, it must be possible to ascertain the issue determined by

3 the judgment. All three conditions have been satisfied here. The justices found as a fact that the issue decided at the earlier hearing

3 (1948) 77 C.L.R. 511,518. 6 [1939] A.C. 1, 19-20, 43; 55 * [1950] A.C. 458. 479, 480; 66 T.L.R. 260; [1938] 4 All E.R. 747,

T.L.R. (Pt. 2) 254, P.C. H.L.(E.). 5 [1926] A.C. 155, 170; 42 T.L.R. 7 [1926] A.C. 155.

207, P.C. 8 (1879) 4 App.Cas. 801, 814, 815, H.L.(Sc).


1967 was that being a gipsy was an essential ingredient of the offence A Mills and that it had not been proved.

Cooper Estoppel by record takes two forms, first, res judicata, that is to say, if the same proceedings are brought again and secondly, if the second proceedings are on the same point as in Hoystead v. Taxation Commissioner? It is not logical to say that the rules of civil law should not apply to criminal law. In Welton v. B Taneborne 10 there was no question of raising the plea of autrefois convict because the defendant was not in danger of conviction on the second offence, but the court took the view that the justices were right in not hearing the second information; that case decides that in criminal cases the court is entitled to say that the issues have been decided and need not be heard again. This may C not be estoppel, but may be harrassing or oppressive. Applying Sealfon v. United States,11 the prosecution here were trying to prove something already adjudicated upon and are estopped from calling further evidence. [Reference was made to Rex v. Wilkes,12

Mraz v. Reg.13] The prosecution could not tender evidence inconsistent with D

that tendered at the first hearing and although they could have tendered evidence to show that the defendant had become a gipsy between December and Maroh, they did not seek to do that. [Reference was made to the Highways Act, 1959, s. 127.] That section is penal and must be strictly interpreted. [Reference was made to the Highway Act, 1835, s. 72.] Bearing in mind the E reference to " hawker " and " itinerant trader " in section 127 of the Act of 1959 and bearing in mind that that section is penal, the appropriate definition of " gipsy " is that in the Shorter Oxford Dictionary.

The justices had jurisdiction to see that the process of the court was not abused and to exercise their discretion properly and F judicially. Even if estoppel did not apply, the second proceedings were an abuse of the process of the court because the first proceedings had been dismissed. Therefore, if the status of a " gipsy" is an immutable state, estoppel must apply. If it is not an immutable state, estoppel applied until the prosecution can produce new evidence. "

As to the discretion of the justices, it was never suggested at the second hearing that the prosecution had fresh evidence to

0 [1926] A.C. 155. 12 (1948) 77 C.L.R. 511, 518, 519. 10 (1908) 24 T.L.R. 873; 99 L.T. 13 (1956) 96 C.L.R. 62, 66, 67, 68,

668,670, 671, D.C. 69,70. 11 (1947) 332 U.S. Reports 575.


\ show that the defendant was a gipsy in March, so the justices 1967

were entitled, on the facts before them, to find that the second Mills proceedings were oppressive and an abuse of the process of the cooper court.

LORD PARKER C.J. This is an appeal by way of case stated B from a decision of justices in the county of Kent sitting at Seven-

oaks, who on June 10, 1966, dismissed an information preferred by the prosecutor against the defendant that he on March 13 of last year at a place called No Man's Land, Dane Bottom, Duntoh Green, being a gipsy did without lawful authority or excuse encamp on a highway contrary to section 127 of the Highways Act,

C 1959. They dismissed the information on the ground that the proceedings before them were oppressive and an abuse of the process of the court.

The decision was made in the following circumstances: at an earlier date, namely on February 25, the magistrates' court at Sevenoaks had dismissed a similar information preferred against

D the defendant that he on December 22, 1965, at the same place being a gipsy did without lawful authority or excuse encamp on a highway. That information was dismissed at the end of the prosecution case on a submission of no case. The justices in the instant case find that the basis of that submission of no case and the reason for the dismissal of the information by the justices on

E that earlier occasion was that they were not satisfied that the defendant was a gipsy. Accordingly, when the present proceedings were called on, and before the defendant was asked to plead, a submission was made on his behalf that the question whether he was a gipsy had been argued before the court on the earlier occasion as a separate issue, and that the court had determined

p that issue in his favour, and accordingly, the submission went on, there was an issue estoppel which would debar the justices from reopening the question and hearing the information.

The justices felt unable to accept that contention, since they were left in doubt whether the doctrine of issue estoppel was applicable in the criminal law; they did, however, feel that in all

3 the circumstances they had power to dismiss the information on the ground that it was oppressive and an abuse of the process of the court, and they exercised their discretion so to do.

Before coming to the ground upon which the justices dismissed the information, it is necessary to consider the question of issue estoppel; indeed Mr. Wigoder, on behalf of the defendant before this court, says, and I think rightly, that this, if anything, is really

2 Q.B. 1967. 30


1967 a case of issue estoppel, though he does in the alternative support A Mills the justices' action in dismissing the information on the ground

Cooper that the proceedings were oppressive. Mr. Wigoder's argument is to j ~ > this effect: that, as a result of an earlier determination by a court

PARKER CJ. of competent jurisdiction as between the same parties that the defendant was not a gipsy, there is a clear case of issue estoppel which should be applied so as to prevent the same issue being B re-litigated. He urged that both on principle and authority there was no reason why the doctrine of issue estoppel should not be applied in criminal cases, provided always—what is rare in the case at any rate of a verdict of a jury—that it is possible to ascertain exactly what issue had been in fact determined. This, he said, was one of the rare cases in which it was possible to find out c exactly what had been determined, and indeed that had been found as a fact by the justices in the case.

I am by no means convinced, for reasons into which I find it unnecessary to go, that the doctrine as applied in civil cases has any application in criminal cases at all. I will, however, assume for the purposes of this case that it has. Even so, I am satisfied D that it has no application in the present case, since the issue determined on the earlier occasion was that the defendant was not a gipsy on December 22, 1965, whereas the issue to be determined on the second occasion was whether he was a gipsy on March 13, 1966.

It was urged that the word " gipsy " should be given its die- E tionary meaning, as being " a member of the Romany race," and that once it was decided by a court that he was not a member of that race, the matter could not be re-litigated except in the event of there being fresh evidence which could not by reasonable diligence have been adduced on the earlier hearing. Were that the true meaning of the word "gipsy," then I think it would be F

necessary to consider further the application of the doctrine of issue estoppel in criminal cases. I am, however, quite satisfied that " gipsy " in this context cannot bear that meaning.

Section 127 of the Highways Act, 1959, is dealing with obstruction and depositing of things on the highway; it provides that: Q

" If, without lawful authority or excuse,—(a) a person deposits on a made-up carriageway, or on any highway which consists of or comprises a made-up carriageway within 15 feet from the centre of that carriageway, any dung, compost or other material for dressing land, or any rubbish, or (b) a person deposits any thing whatsoever on a highway to the interruption of any user of the highway, or (c) a hawker or other


^ itinerant trader or a gipsy pitches a booth, stall or stand, or lg67 encamps, on a highway, he shall be guilty of an offence . . ." Mills

v. That a man is of the Romany race is, as it seems to me, some- Cooper

thing which is really too vague of ascertainment, and impossible LORD to prove; moreover it is difficult to think that Parliament intended PARKBK CJ. to subject a man to a penalty in the context of causing litter and

B obstruction on the highway merely by reason of his race. I think that in this context " gipsy " means no more than a person leading a nomadic life with no, or no fixed, employment and with no fixed abode. In saying that, I am hoping that those words will not be considered as the words of a statute, but merely as conveying the general colloquial idea of a gipsy.

C Looked at in that way, a man might well not be a gipsy on one date and yet be one on a later date. I cannot think that the doctrine of issue estoppel, even if applicable at all in criminal cases, is applicable except in cases where the determination is as to something which has taken place on a particular day or as to something like the date of a man's birth, which can never vary and has no

D application whatever to a state of affairs, as here, when a man may be described as a gipsy on one day, and may well not be so described on another day.

In those circumstances I think that the justices were right in so far as they did not apply the doctrine of issue estoppel.

So far as the ground upon which they did dismiss the informa-E tion was concerned, every court has undoubtedly a right in its

discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the court. Once, however, one approaches this matter on the basis of the meaning of" gipsy " as a man leading a nomadic life, it is I think impossible to say that there were any circumstances here which entitled the

F justices to say that proceedings brought some two-and-a-half months later on the issue whether he was a gipsy could in any sense of the word be said to be oppressive and an abuse of the process of the court. Accordingly in my judgment the appeal succeeds and the case should go back to the justices to continue

_, the hearing.

DIPLOCK L.J. I agree that the word " gipsy " as used in section 127 of the Highways Act, 1959, cannot bear its dictionary meaning of " a member of a wandering race (by themselves called Romany) of Hindu origin. . . ." If it did it would mean that Parliament in 1959 had amended the corresponding section of the Highway


1967 Act, 1935 (which referred to " gipsy or other person "), so as to A Mills discriminate against persons by reason of their racial origin alone.

Cooper It would raise other difficulties too. How pure-blooded a DIPLOCKLJ R°m a ny m u s t one be to fall into the definition? The section is a

— penal section and should, I suppose, be strictly construed as requiring pure Romany descent. As members of that race first appeared in England not later than the beginning of the sixteenth B century, and have not in the intervening centuries been notorious for the abundance of their written records, it would be impossible to prove Romany origin even as far back as the sixteenth century, let alone through the earlier centuries of their peripatetic history from India to the shores of this island. The section so far as it referred to " gipsy " would be incapable in practice of having any c application at all.

Confronted by those difficulties, Mr. Wigoder has only faintly argued that the word " gipsy " in the context of the section does not bear its popular meaning, which I would define as a person without fixed abode who leads a nomadic life, dwelling in tents or other shelters, or in caravans or other vehicles. D

If that meaning is adopted, it follows that being a gipsy is not an unalterable status. It cannot be said, " once a gipsy always a gipsy." By changing his way of life a modern Borrow may be a gipsy at one time and not a gipsy at another.

It is in the light of that meaning to be attached to the word " gipsy " that the question of any so-called " issue estoppel" must E be considered in the present case. The doctrine of issue estoppel in civil proceedings is of fairly recent and sporadic development, though none the worse for that. Although Hoystead v. Taxation Commissioner1 did not purport to break new ground, it can be regarded as the starting point of the modern common law doctrine, the application of which to different kinds of civil actions is F currently being worked out in the courts. That doctrine, so far as it affects civil proceedings, may be stated thus: a party to civil proceedings is not entitled to make, as against the other party, an assertion, whether of fact or of the legal consequences of facts, the correctness of which is an essential element in his cause of action or defence, if the same assertion was an essential element in his G previous cause of action or defence in previous civil proceedings between the same parties or their predecessors in title and was found by a court of competent jurisdiction in such previous civil proceedings to be incorrect, unless further material which is rele-

1 [1926] A.C. 155; 42 T.L.R. 207, P.C.


A vant to the correctness or incorrectness of the assertion and could 1967

not by reasonable diligence have been adduced by that party in Mills the previous proceedings has since become available to him. Cooper

Whatever may be said of other rules of law to which the label DIPLOOC LJ. of " estoppel" is attached, " issue estoppel" is not a rule of — evidence. True, subject to the qualification I have stated, it has

B the effect of preventing the party " estopped " from calling evidence to show that the assertion which is the subject of the "issue estoppel" is incorrect, but that is because the existence of the " issue estoppel" results in there being no issue in the subsequent civil proceedings to which such evidence would be relevant. Issue estoppel is a particular application of the general rule of public policy that there should be finality in litigation.

That general rule applies also to criminal proceedings, but in a form modified by the distinctive character of criminal as compared with civil litigation. Here it takes the form of the rule against double jeopardy, of which the simplest application is to be found in the pleas of autrefois convict and autrefois acquit; but the rule against double jeopardy also applies in circumstances in which those ancient pleas are not strictly available; and it is in connection with the wider application that the High Court of Australia in particular in the cases cited (Rex v. Wilkes2 and Mraz v. Reg.3) has used the same expression as is used in

„ civil proceedings: " issue estoppel." I think with great respect that the use of that expression in criminal and civil proceedings alike may lead to confusion, for there are obvious differences—lack of mutuality is but one—between the application of the rule against double jeopardy in criminal cases, and the rule that there should be finality in civil litigation. But it is unnecessary in the present appeal to inquire into the precise limits of the wider application of the rule against double jeopardy to situations in which the pleas of autrefois convict and autrefois acquit are not strictly available, for it is nowhere suggested that they are wide enough to prevent the prosecution in criminal proceedings against a defendant against whom previous criminal proceedings have been brought, from making an assertion which " issue estoppel" would not have

a debarred him from making if the two sets of proceedings had - been civil and not criminal.

In the present case the relevant assertion by the prosecution in the previous criminal proceedings was: "That the defendant was a gipsy on December 22, 1965." In the subsequent criminal

2 (1948) 77 C.L.R. 511. s (1956) 96 C.L.R. 62.


1967 proceedings in which this appeal is brought the relevant assertion ^ Mills by the prosecution was : " T h a t the defendant was a gipsy on

Cooper March 13, 1966." Once it is recognised that being a gipsy is not — an unalterable status but depends upon the way of life which a — ' person is leading at any particular time, it is plain that the incor

rectness of the assertion made in the previous proceedings is not inconsistent with the correctness of the assertion made in the pro- g ceedings now under appeal. The justices accordingly would not have been right in holding that the prosecution were not entitled to, or were estopped from asserting that the defendant was a gipsy on March 13, 1966, and from proving it if they can.

One further observation: Mr. Wigoder for the defendant has contended that even if this be so, the prosecution at the resumed Q hearing before the justices will not be entitled to adduce any evidence which would by the exercise of reasonable diligence have been available to them at the time of the previous proceedings, and which tends to show that the defendant was already a gipsy on December 22, 1965. I do not think that there is any substance in this contention. Issue estoppel, as I have said, is not a rule of -~. evidence. The prosecution will be entitled to call any evidence which is relevant to show that the defendant was a gipsy on March 13, 1966. Evidence as to his way of life before that date will be relevant, including evidence as to his way of life before as well as after December 22, 1965. It matters not that such evidence might also tend to show that he was gipsy on December 22, 1965. E

That is not a matter to which the justices on the present prosecution have to address their minds. They have no jurisdiction to inquire into it.

As regards the contention that this prosecution was an abuse of the process of the court, I have nothing to add to what Lord Parker CJ . has already said. _

ASHWORTH J. I agree with both judgments.

Appeal allowed. Case remitted for justices to con

tinue hearing of information. ~,

Solicitors: A. C. Staples, Maidstone; Peter Kingshill.

2 q.b queen'. 45s bench division9 - university of nairobi€¦ · 2 q.b. queen's bench...

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